AIN17 v Minister for Immigration and Border Protection

BARKER J: 1 The applicant, who is a citizen of Afghanistan and has resided in Australia under a permanent residence visa since 2001, applies to quash a decision of the second respondent, the Assistant Minister for Immigration and Border Protection, not to revoke the initial decision of the first respondent, the Minister for Immigration and Border Protection, to mandatorily cancel his visa. 2 The result of the initial decision of the Minister and the decision of the Assistant Minister now the subject of this review proceeding, is that the applicant is being held in immigration detention on Christmas Island. 3 As will become apparent from the discussion below, because the applicant cannot be returned to his country of origin, and there is no third country to which he can travel, he presently faces indefinite immigration detention in Australia. 4 The applicant, when he applied for revocation of the mandatory cancellation of his visa - which was cancelled under s 501(3A) of the Migration Act 1958 (Cth), having regard to his substantial criminal history in Australia - acknowledged that he had a substantial criminal history but submitted that the mandatory cancellation of the visa should be revoked for the following reasons: Revocation is in the best interests of his children, who are Australian citizens and who will be significantly adversely affected by his deportation through no fault of their own. His long standing partner, an Australian citizen, will be adversely affected, financially, emotionally and socially. He has resided in Australia since 2001 with minimal ongoing links to Afghanistan and Australia has international non-refoulement obligations. He now presents a low risk of engaging in future criminal conduct that would require protection of the Australian community. 5 A lawyer and migration agent acting on his behalf in relation to the request for revocation supplied information to the Assistant Minister in support of each of those reasons. 6 Additionally, each of the reasons was elaborated on in appropriate ways. 7 In relation to the question of protection of the Australian community from criminal or other serious conduct, on the applicant's behalf it was acknowledged that he had a substantial criminal record spanning from 2005 to 2014. It was said that most of those offences related to driving, disorderly conduct or possession of drugs and resulted in fines. Most recently, however, it was acknowledged, he was sentenced to one month imprisonment for possession of a prohibited drug. The sentence was to be served concurrently with a previous 16 month sentence imposed in January 2014, for two counts of unlawful wounding. 8 It was said that he had made efforts to address his violent tendencies and that included completing an intensive violent offending program and participating in group therapy sessions. 9 It was submitted that the underlying causes of the offences, primarily drugs, had been removed while he had been in prison and he had had the opportunity to address his drug use and its consequences and, as a result, it was highly probable that he would refrain from further offending. 10 As to the risk to the Australian community that he might commit further offences or engage in other serious conduct, it was submitted on the applicant's behalf that his likely further offending was mitigated by the factors just mentioned and particularly his fear of separation from his family. 11 Strong submissions were also made that it was in the best interests of his then 10 year old, seven year old and one year old children, as well as in the interests of another 14 year old child of whom he was the stepfather, that he should remain in Australia under his visa. Reference was made on the applicant's behalf to Art 3(1) of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights in that regard. 12 Additionally, reference to Australia's international non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol (together the Refugees Convention), the Convention Against Torture and Other Cruel Inhuman or Degrading Punishment and the International Covenant on Civil and Political Rights were all referred to. 13 The fact that the applicant was an Afghan national of Hazara ethnicity was developed in the submissions and it was submitted that the circumstances were such that if the applicant were returned to Afghanistan he would run the substantial risk of torture on the basis of his ethnicity, thus giving rise to the non-refoulement obligations that Australia has. 14 The strength, nature and duration of his ties since he came to Australia in 2001 as a 20 year old were also emphasised. Similarly, the employment prospects and future contributions to Australia if he were able to remain were also emphasised. 15 By s 501(3A) of the Act, the Minister, in the first instance, must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 16 By s 501(6), for the purposes of s 501, relevantly, a person does not pass the character test if the person has a substantial criminal record. 17 For the purposes of the character test, s 501(7) provides that a person has a substantial criminal record if, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more, or the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more. 18 In this case, as the applicant admitted, he relevantly had a substantial criminal record, and accordingly the Minister was required to cancel his visa. 19 By s 501CA, however, the Minister may revoke the original decision to cancel a decision under s 501(3A) if the affected person makes representations in accordance with an invitation given under s 501CA(3), and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. 20 In this case, the applicant received an invitation to make representations to the Assistant Minister and duly made those representations. 21 The Assistant Minister declined, however, to revoke the original decision. He provided a statement of reasons for the decision not to do so. 22 In his reasons, the Assistant Minister noted that the applicant had been convicted in the Magistrates Court of Western Australia of the following: unlawfully wounded in circumstances of aggravation, imprisonment 14 months cumulative; and unlawfully wounded in circumstances of aggravation, imprisonment two months cumulative. 23 He said he had considered the representations that the applicant had made and the documents he had submitted in support of them. 24 He observed that the applicant noted that he had not satisfied the character test and did not dispute the information regarding his criminal convictions and sentences. 25 The Assistant Minister concluded he was not satisfied that the applicant passed the character test, with the result that s 501CA(4)(b)(i) of the Act was not met. 26 He then went on to consider whether there was another reason why the original mandatory visa cancellation decision should be revoked. 27 Again, he said he had assessed all of the information set out in attachments to the decision and considered the applicant's representations and documents as to why the original decision should be revoked. 28 He noted that these included the best interests of his children; the adverse impact of removal on his partner; his residence in Australia since 2001 with minimal ongoing links to Afghanistan; Australia's international non-refoulement obligations; the steps he has taken to rehabilitate himself; and the time he has spent in immigration detention being itself a deterrent against reoffending. 29 The Assistant Minister then, in his reasons, elaborated on each of these factors in sections headed "Best interests of minor children", "International non-refoulement obligations", "Strength, nature and duration of ties", "Extent of impediments if removed", "Protecting the Australian Community", "Criminal conduct", "Risk to the Australian community", and "Conclusion". 30 At [69] of his reasons, the Assistant Minister said that in considering whether, in light of the applicant's representations he was satisfied that there was another reason why the original cancellation decision should be revoked, he gave "primary consideration" to the best interests of the applicant's children, as well as his partner's daughter and had found that their best interests would be best served by the revocation of the mandatory visa cancellation decision. 31 At [70], he added that he had considered the length of time the applicant had made a positive contribution to the Australian community and the consequences of his decision for the applicant's other family members, in particular for his partner. 32 At [71], the Minister said that, on the other hand, in considering whether he was satisfied that there was another reason why the original decision should be revoked, he gave significant weight to the serious nature of the applicant's offending, including his unlawful wounding offences, which were of a violent nature. He said he was also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 33 At [72], the Assistant Minister found that the Australian community "could be exposed" to great harm should the applicant reoffend in a similar fashion. He said he could "not rule out" the possibility of further offending by the applicant. 34 The Assistant Minister, at [73], said that in reaching his decision he concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration, and any other considerations as described in his reasons, which included his length of residence, prior employment, international non-refoulement obligations, the impact of indefinite detention, and the hardship the applicant, his family and social networks would endure in the event that the original decision is not revoked. 35 In the light of that decision, apparently with some legal advice at that point, the applicant filed an application for an order that the Assistant Minister show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s 476 of the Act in respect of this migration decision. 36 He stated four grounds of the application. 37 I might note in passing that he also sought an extension of time for the making of this application, which extension was not opposed by the Assistant Minister and the hearing proceeded in relation to the substantive grounds. 38 It should be noted that at the case management hearing, the Minister's solicitor advised the Court that the Minister's statement, set out above at [32], to the effect that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia, may raise issues determined in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465. The Minister's solicitor sought to distinguish this case from Tesic, referring to Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73. 39 On 7 June 2017, prior to the hearing of this application, Tesic, on this point, was reversed on an appeal to the Full Court (Reeves, Robertson and Rangiah JJ), which found that the Minister was not referring to legal principles but to considerations of government policy: see Minister for Immigration and Border Protection v Tesic [2017] FCAFC 83. This issue was not pressed by the applicant as a ground at the hearing and I do not consider it to be relevant. 40 The grounds of the application are as follows: 1. The minister's decision is affected by a jurisdictional error in that he failed to properly consider all my claims. 2. The minister has failed to take into consideration the impact of prolonged detention on my children and my Australian partner. 3. The minister has failed to properly consider the fact that, being a refugee, Australia has nonrefoulement obligation towards me. Also there is no possibility of removal to a country other than Afghanistan. 4. The minister has failed to consider that over the last four years in detention and gaol I have not re-offended and that there is been considerable improvement in my behaviour. 41 The first ground of the application is a little ambiguous in that it may be read as simply stating a general ground that is particularised by the following three grounds. However, it might also be intended to refer to all other claims the applicant made to the Minister in his representations in addition to the matters referred to in grounds 2, 3 and 4. In the circumstances, I will assume the latter position and return to ground 1 later in these reasons. 42 At the hearing of the application, the applicant, notwithstanding the Court in pre-trial case management had made provision for a certificate to be issued to enable a pro bono lawyer to advise and represent the applicant, was self-represented. While an interpreter was available in the court room when the applicant appeared by video conference from Christmas Island, it became apparent that he did not need the constant assistance of the interpreter and was able to understand and follow the proceeding that was conducted in English. Nonetheless, at different times the interpreter did assist the applicant. 43 At no time did the applicant seek to expand upon or amend the grounds of the application, as set out above. 44 At the hearing, I invited the Minister's counsel to orally articulate the Minister's ground of opposition to the application, so that the applicant would have the benefit of hearing how exactly those submissions were put before he made his submissions. 45 When the applicant made his submissions orally, they went more to the merits of the decision made by the Minister, than they did to the detail of the grounds articulated in his application. 46 The applicant made the following submissions: AIN17: My case, sir - I've been - I've been in detention centre nearly three years. I have a - I have no ..... your Honour, I haven't any fight or any violence. The Minister didn't say that, your Honour. I ..... problem for nearly three years. The most violent people in - live in the Christmas Island. I have no incident, your Honour. I then - I did my few courses, your Honour. I do control my temper, your Honour. The Minister doesn't say that though. But another one, that I have a letter here too from ..... they said to me, your Honour, I've been behaving. I've been a good person. From - I have a letter from ..... and another one - another one says that I have a - I have four beautiful kids here in this country. I've been here nearly 16 years, your Honour. I've been - I've been working my whole life. Your Honour, I look after my kids. Your Honour, I have been a good father. The Minister don't care about that stuff, your Honour. Another one, I cannot go back to my country ..... any place I might go to - to go back to my country with my kids, your Honour. My kids - mum, she's an ..... she's a Christian ..... in my country they don't - they don't want Christian people to live there ..... my own case. I cannot take my kids in Afghanistan, your Honour. There's no way to live in Afghanistan ..... anywhere to live - I don't want to stay here one day in this Christmas Island, your Honour. It's worse than Guantanamo, your Honour. Torturing people here, your Honour, physically and mentally here. I don't want to stay one day here. If you have a - one place to go. That's the only reason I ..... stay here - to get my visa back. I've been five years clear. No - any problem, any drama. I'm nearly 36 years old now, your Honour. I ..... one chance to go back to my family, your Honour. That's all I can say, sir. 47 The oral submissions of the applicant demonstrate that he feels harshly treated in the circumstances in which he finds himself. He is distant from his family, who are based in Perth, Western Australia. Because of the application of the non-refoulement obligations of Australia in this instance, he is not likely any time soon to be returned either to Afghanistan or to some other third country where he may find safe haven. The result is, regrettably, that the applicant is likely to remain in indefinite detention for some time to come. 48 In submissions made on behalf of the Minister at the hearing, counsel advised that there are other options that may be available so that the present detention may not be a lasting detention. Counsel mentioned the possibility of the grant of a protection visa and indicated that, following the resolution of this proceeding, the Minister may also have other options available to him under the Act. 49 So far as the resolution of this application is concerned, it is not possible to accede to any of the grounds of the application. 50 The High Court has found that ss 189, 196 and 198 of the Act authorised and required the detention of an unlawful non-citizen, even if the removal of the applicant from Australia was not reasonably practicable in the foreseeable future: see Al Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37. Notwithstanding Al Kateb, the Full Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (Allsop CJ, Buchanan and Katzmann JJ) held the Minister was required to take into account the legal consequences of his decision - that the applicant would face the prospect of indefinite detention, and the failure to do so resulted in jurisdictional error. 51 For the reasons below, I am satisfied that the Assistant Minister had regard to the requirement to take into account the legal consequence of indefinite detention when he made his decision and, as such, this case is distinguishable from NBMZ. See AUK15 v Minister for Immigration and Border Protection [2015] FCA 938 at [105], [116]. 52 Commencing with ground 2, there is no indication from the written statement of reasons and taking into account the representations made by or on behalf of the applicant to the Assistant Minister at material times that the Assistant Minister failed to take into consideration the impact of prolonged detention on the applicant's children or his Australian partner. The Minister expressly took those impacts into account, as the references to that factor in the decision, set out above, indicate. 53 So far as ground 3 of the application is concerned - that the Minister failed to properly consider the fact that, being a refugee, Australia has non-refoulement obligations towards him and there is no possibility of removal to a country, other than Afghanistan - again the Assistant Minister expressly noted the consequences of a refusal of the application to revoke the original decision would be indefinite detention and the impact that would have on all concerned. I am unable to conclude, thereby, that the Minister was either not aware of or did not take into account this factor. Ground 3 must, therefore, fail. 54 The fourth ground is that the Minister has failed to consider that over the last four years in detention and jail, the applicant has not reoffended and that there has been considerable improvement in his behaviour. Again, the Assistant Minister plainly noted and took into account these factors. 55 The fact of the matter is that the Assistant Minister, as the above references to the finally significant parts of his decision indicate, weighed all of the factors set out in the grounds of the application, and others, against the concern of the Minister that members of the Australian community would be put at risk if the mandatory visa cancellation decision were revoked. That weighing exercise - the merits of the decision - is, under the Act, for the Assistant Minister to complete; not this Court. While others may wish to contest the weighing exercise carried out by the Assistant Minister, this Court is concerned with whether or not jurisdictional error has been committed in one form or another by the Assistant Minister in the course of, or process of, making his decision. There is no indication that any such error was made in this case. 56 I should add that while the applicant did not expressly state that a ground of his application was that the Assistant Minister's decision was legally unreasonable, there is nothing in the record before the Court to suggest it was. The decision is not lacking "an evident and intelligible justification". See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). 57 In these circumstances, the application must be dismissed with costs. 58 As noted above, counsel for the Minister indicated at the hearing that once this proceeding is concluded, there are other options available to the Minister to respond to the applicant's concern that he will remain in indefinite detention should this proceeding commenced by him be dismissed. The response to that understandable concern falls within the province of the Minister's decision-making. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

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